Saturday, October 31, 2009



Web Copyright: Who Owns What?

Trying to figure out web copyright law is like falling down the rabbit hole in Alice in Wonderland. It’s a topsy-turvy world in which media content giant Viacom (owners of cable’s Comedy Central) is suing You Tube for copyright infringement for displaying clips from Jon Stewart’s “The Daily Show” and from “Daily Show” spin-off, “The Colbert Report.”

Interesting case with allegations flying from both well-funded complainant and defendant with accusations from You Tube owner, Google, that Viacom is posting its own clips on the site for marketing purposes. Hmmmm.

Same deal with the music industry that claims You Tube is making money off artists without paying licensing fees. You can see concert clips of music stars free on You Tube and the musicians, and their record companies, want their take even though these clips actually promote sales. You see Clapton play “Layla” in concert and you immediately open your iTunes account to download a copy. We all do it. Legally.

So, who owns what on the web and how can you, a site-owning webmaster, avoid a lawsuit for copyright infringement (as if you don’t have enough headaches).

What do you own?

If you’ve built your web site, you own an intellectual property just like a book or a movie or TV show – all intellectual properties. However, if you download rights free clip art to pepper your site with photos, you don’t own the pix. You can use them, but you don’t own them.

You own content that you wrote or paid to have written under a standard “Work for Hire” contract that you sign with a professional copywriter. (Make sure to get it in contract form.) Under these agreements, the professional gives up all rights (and there are lots of them) in exchange for payment of an agreed-upon amount.

You own your site’s URL as long as you re-up every 12 months. And you own anything that’s considered proprietary. For example, if you own the rights, license or patent on a product you sell, any images of that product are considered proprietary. You own them.

However, that doesn’t mean that other site owners can’t use these images. They can, even if you’ve copyrighted them. There are a variety of “fair use” clauses in copyright law that allow reviewers to quote from copyrighted books, or to show clips from a copyright movie. This is considered fair use of the images owned by someone else.

So, if someone writes a review of your product, they can show an image of that product under fair use statutes – as long as they don’t say anything untruthful about the product – something you and your lawyer can determine.

What you don’t own

Everything else.

If you have a great new idea for a sure-fire, can’t miss web-based business and somebody comes along and steals your thunder (and your idea) tough luck. You can’t copyright an idea.

You don’t own content from other sites, even if it’s syndicated and delivered each day by RSS feed. Again, you can use it (RSS use is a single right under a much broader umbrella of copyright protection) but you can’t claim it as your own, edit it, put your name on it or otherwise mislead the reader or viewer about the source of the content.

Play It Safe

To avoid problems, assume everything is copyrighted. The owner of an intellectual property isn’t required to add a copyright notice (©) but just because there isn’t a notice doesn’t mean it’s public domain content – content that can be used by anyone without cost or permission.

If you’re producing or displaying “Work for Hire” content on your site, it’s highly recommended that you do add a copyright notice – something like: © This work is protected under international copyright laws and may not be used without the written permission of (put your name or company name here). This won’t stop the practice, sometimes called “rip art” – intellectual property essentially stolen or appropriated without the necessary permissions of the copyright holder.

Oh, and the “I didn’t see any copyright notice” defense won’t save you. A number of site owners have tried it and the courts always side with the owner of the intellectual property, assuming that you’re smart enough to know that all content has an owner and content is an asset – something worth protecting.

Another key point: if you do use rights-free clip art, you can’t create any untruths (lies) about it. Here’s a rights free clip from the Microsoft collection available to anyone for download and use on their sites – rights free.

It’s fine to add a label that doesn’t misconstrue the intent of the photo. So, grabbing this picture from the Microsoft gallery, you could say “Busy sales executive on the go.” No problem.

What you can’t say is “Our mobile phones, like the one shown here, have the widest range of any cell on the market.” It’s a lie. Worse, you can’t say “This is just one more example of how prostitution has taken to the streets in our city.” That clearly misconstrues the intent of the photograph.

Good: A busy real estate agent has to keep in touch with her many clients.

Bad: The Acme Hands-Free headset makes driving a breeze.

Worst: This picture shows that sexually transmitted diseases affect all people. (This one could land you in court.)

Unfair Use of Meta Data

You can’t use company names trademarks, signature marks or other intellectual properties in your site’s meta data though many unknowing site owners do this. An ebiz owner selling Godiva chocolates can use Godiva in the site’s keyword and title tags. However, if the site doesn’t sell Godiva chocolates, the unethical site designer is ripping off Godiva’s good name to generate profit.

The case of Oppedahl & Larson v. Advanced Concepts, et al made it clear that even though the copyright infringement wasn’t visible, the defendants were benefiting from the use of someone else’s intellectual property.

Know Your DMCA

With the web growing like a weed in the 90s, the Digital Millennium Copyright Act (DMCA) was signed by President Bill Clinton in 1998. The act takes into consideration heretofore undeveloped outlets for content, in most cases, digital outlets.

The actual DMCA is bone-dry, legal-speak but, if you’re going to be using content in any form from other sites – including rights-free pictures and text – it’s worth loading up on the caffeine and plowing through this document. The DMCA is based on a couple of international copyright treaties that countries, like China, have signed but completely ignore, pirating billions of dollars of intellectual properties every year. You can buy a DVD copy of the next summer blockbuster in Beijing before it even hits the screens in the U.S. However, if the culprit is U.S.-based, you could bring suit and follow through. If you really wanted to.

What if you get ripped off?

Well, it’s not quite tough toenails, but darned close. There are treaties and laws, acts, agreements, roundtables with bunches of legal experts from around the world – but there’s very little enforcement. Other than you.

There is no Web Police (wait for it) so if you find your well-written article on some other guy’s site you’ll have to take the initial action, and most times you’ll discover that any lawyer who’s up-to-speed on web copyright law is going to cost like a thousand bucks an hour, making it uneconomical to pursue legal action. Especially if the (alleged) perp lives in Timbuktu. Good luck in finding any court that’ll hear the case. And even if you do and you prove your case in court, how are you going to collect for damages? You may end up getting paid off in goats, if you collect anything.

The best thing to do if you find your intellectual property has been ripped is to contact the site owner (there’s usually a contact form, telephone number or some type of contact information) to inform the offending rip artist that s/he’s using your intellectual property and would s/he kindly remove it from the site.

Most site owners don’t want to hassle with copyright infringement cases, so the piece is likely to be removed.

And Now Back to Our Show: The You Tube-Viacom Smackdown

You Tube claims that it’s very protective of the intellectual property rights of others and that when informed that a copyrighted piece has been posted without permission, the company removes the post immediately.

Hard to say. Even with the battle of these two content titans in the headlines, there were plenty of clips from the “Daily Show,” the “Colbert Report” and other TV shows posted on You Tube today, along with movie trailers, music videos and a lot of content that has a big © right there on the screen. So you have to wonder.

The point is, recognize your exposure to risk. You can be sued for misappropriating someone else’s intellectual property. Is it likely to happen? Not today.

But is it really something you want to take to court? You, no doubt, have better things to do, so play it straight, get your signed use-permissions in place, and breathe a little easier because you’ve eliminated one more risk from your online venture.

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